Lasting Powers of Attorney

Lasting Powers of Attorney

What is the purpose of a Lasting Power of Attorney?

A power of attorney is a legal document whereby a person (donor) gives another person or persons (the attorney/s) authority to make certain decisions on his or her behalf.

There are two types of Lasting Power of Attorney (LPAs) and you can choose to make one type or both.

1. A property and financial affairs LPA gives your attorney authority to deal with your property and finances. The LPA gives your attorney the power to make decisions in relation to your bank or building society accounts, pay your bills, collect benefits or a pension or even to sell your home. The LPA can be used whilst you still have capacity, with your consent, and once you have lost capacity.

1. A health and welfare LPA allows your attorney to make welfare and health care decisions on your behalf. The LPA gives your attorney the power to make decisions about your daily routine, medical care, moving into a care home and, if you choose, life-sustaining treatment. Unlike the property and financial affairs LPA, it can only be used when you are unable to make your own decisions.

Who can be your Attorney?

Your attorney must be aged 18 or over. They can be a relative, a friend, spouse or partner or otherwise a professional ie. a solicitor. Your attorney does not need to live in the UK or be a British citizen, although if they are managing your day to day affairs you may want to consider appointing an attorney who lives near to you.

For the property and financial affairs LPA your attorney must not be an undischarged or interim bankrupt person and they should have the appropriate skills to manage your financial affairs.

When choosing an attorney you should think about:

• how well they look after their own affairs, for example their finances
• how well you know them and whether you trust them to make decisions in your best interests
• how happy they will be to make decisions for you
• if there is more than one attorney, do they get along with each other well or would they be likely to do so

Can I have more than one attorney?

You can appoint more than one person as your attorney and can appoint replacement attorneys as well. If you appoint more than one attorney you must decide if you would like them to make decisions:

• jointly and severally - which means attorneys can make decisions on their own or with other attorneys.
• jointly - which means all the attorneys have to agree on every decision.

Attorneys who are appointed jointly must all agree on every decision. As such, if one jointly appointed attorney were to die or lose capacity and could no longer act as an attorney, the other jointly appointed attorney/s would not be able act as your attorney/s anymore either.

When can the Attorney act?

An attorney will only be able to act once the LPA has been registered at the Office of the Public Guardian. In order to register the LPA it must be signed by you, your certificate provider and your attorney/s.

Your Attorney/s can act under the property & financial LPA both when you have capacity, with your authority, and when you lack mental capacity to make a financial decision. The health & welfare LPA can only be used when you lack mental capacity to make a health or welfare decision yourself.

Is property abroad covered?

An LPA is valid for assets in England and Wales, but may not be accepted in other countries. If you have links with other countries or you know you are going to spend significant time outside the UK (for example, retiring abroad) you should take advice in that country with a view to signing a similar document there, if required.

What happens if you lose capacity and have not made a LPA?

It is only possible to create an LPA while you still have the capacity to do so. If you have been diagnosed with a disorder that inhibits your capacity such as Dementia or Alzheimer's, but still believe you have capacity, it may be necessary for a doctor or other health professional to act as your Certificate Provider.

If somebody lacks capacity to make financial decisions but has not created an LPA, it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as a Deputyship Order. This can however be costly and the process can be lengthy. As such it’s important to consider creating an LPA whilst you still have the capacity to do so.

If you would like further information or advice on this matter please contact our Private Client department to arrange an appointment.